
Class _A21 







In the Matter of the Award made by the Senate of the United ~r-^CT- 
States in favor of the Choctaw Nation of Indians, under 
and by virtue of the Treaty between the said Nation, and the 
United States of June 22, l^bb. , -r "- t I 

n 
Whether this award in honor and good faith imposes 

an obligation on the Government and people of the United 
States to fulfil the same is a question which is susceptible, 
as is believed, of a satisfactory solution, on considerations 
that can be comprised within a brief space. They are as 
follows, to wit : 

1. That this nation of Indians were, at the date of the 
above named treaty, and for more than a third of a cen- 
tury, had been urging on the Government of the United 
States a claim for a large sum of money, accruing from 
the [avails of lands to the amount of 10,423,139.69-100 
acres transferred to the United by the treaty of 27th Sep- 
tember, 1830, is a fact disclosed by a vast number of pub- 
lic documents, now in our executive and legislative arch- 
ives, and is too notorious to make the details necessary or 
important. 

2. That there was at the same date in regard to this 
matter a diiierence between the United States and this 
Choctaw Nation, which they could not settle by negoti- 
ation, appears from the treaty first above named. 

3. Therefore the Government of the United States, be- 
ing desirous of doing justice to the claimants, accorded to 
them the privilege of ari arbitrament by an- august tribu- 
nal, which they cordially accepted, and the parties having 
agreed npon the terms the same were introduced into 
the treaty of June 22, 1856, as follows: 

Article XL The Government of the United States not 
being prepared to assent to the claim set up under the treaty 
of September 27, 1830, and so earnestly contended for by 



^ I I 



2 



the Choctaws as a rule of settlement, but justly appreci- 
ating the sacrifices, faithful services, and general good 
conduct of the Choctaw people, and being desirous that 
their rights and claims against the United States shall re- 
ceive a just, fair, and liberal consideration, it is therefore 
stipulated that the followins; questions be submitted for 
adjudication to the Senate of the United States: 

"First. Whether the Choctaws are entitled to, or shall 
be allowed, the proceeds of the sale of the land ceded by 
%lieni to the United States by the treaty of September 27, 
1830, deducting therefrom the costs of their survey and 
sale, and all just and proper expenditures and payments 
under the provisions of said treaty; and, if so, what price 
per acre shall be allowed to the Choctaws for the lands re- 
maining unsold, in order that a tinal settlement with them 
may be promptly effected ; or, 

" Second. Whether the Choctaws shall be allowed a gross 
sum in further and full satisfaction of all their claims, 
national and individual, against the United States; and, 
if so, how much.'' 

Article XII. In case the Senate shall award to the 
Choctaws the net proceeds of the lands ceded as aforesaid, 
the same shall be received by them in full satisfaction of 
all their claims against the United States, whether national 
or individual, arising under an}- former treaty; and the 
Choctaws shall thereupon become liable and bound to pay 
all such individual claims as may be adjudged by the 
proper authorities of the tribe to be eqnitable and just; 
the settlement and payment to be made with the advice 
and under the direction of the United States agent for the 
tribe; and so much of the fund awarded by the Senate to 
the Choctaws as the proper authorities thereof shall ascer- 
tain and determine to be necessary for the payment of the 
just liabilities of the tribe shall, on their requisition, be 
\md over to them by the United States. But should the 
Senate allow a gross sum in further and full satisfaction of 
all their claims, whether national or individual, against 
the United States, the same shall be accepted by the Choc- 
taws, and they shall thereupon become liable for and 
bound to pay all the individual claims as aforesaid; it be- 
ing expressly understood that the adjudication and decision 
of'the Senate shall be final. 

(11 Stat, at Large, page 611.) 

4. The Senate being b^ far the most important legisla- 



tive body on this continent, and representing at one and 
the same time the sovereignty of the States, and the inter- 
ests and will of a vast people, and composed of accom- 
plished statesmen and learned jurists, with a high sense of 
obligation on the one hand to appreciate properly the 
rights of the Government and people of the United States, 
and on the other to accord to this Choctaw Nation that 
full measure of justice which an enlightened and hene1^c\^ f-^-^^^^^ 
[)ublic sentiment would be certain to approve, undertook 
this most delicate trust, and had it under consideration at 
different times during a period of three years when, that 
is to say, on the 9th day of March, 1859, they made and 
rendered their award as follows: 

Whereas the eleventh article of the treaty of June 22, 
1855, with the Choctaw and Chickasaw Indians, provides 
that the following questions be submitted for decision to 
the Senate of the United States : 

"First. Whether the Choctaws are entitled to or shall 
be allowed the proceeds of the sale of the lands ceded by 
them to the United States by the treaty of September 27, 
1830, deducting therefrom the costs of their survey and 
sale, and all just and proper expenditures and payments 
under the provisions of said treaty ; and, if ho, what price 
per acre shall be allowed to the Choctaws for the land re- 
maining unsold, in order that a final settlement with them 
may be promptly effected ; or, 

"Secondly. Whether the Choctaws shall be allowed a 
gross sum in further and full satisfaction of all their claims, 
national and individual, against the United States; and, 
if so, how much ?" 

Resolved. That the Choctaws be allowed the proceeds of 
the sale of such lands as have been sold by the United 
States on the 1st day of January last, deducting therefrom 
the costs of their survey and sale, and all proper expendi- 
tures and payments under said treaty, excluding the reser- 
vations allowed and secured, and estimating the scrip is- 
sued in lieu of reservations at the rate of §1.25 per acre; 
and, further, that they be also allowed twelve and a half 
cents per acre for the residue of said lands. 

Resolved, That the Secretary of the Interior cause an 
account to be stated with the Choctaws, showing what 



amount is due them accordinoj to the above-prescribed 

principles of settlement, and report the same to Congress. 

(Senate Journal, 2d session 35th Congress, page 493.) 

5. Of the whole quantity of lands, (being a little under 
ten millions and a half of acres,) the United States, on 
January 1, 1859, had sold 5,912,664.67 acres, and had re- 
alized therefrom $7,556,578.05, and there then remained 
unsold 4,176,374.04 acres. 

In tlie form of an award reported on the 15th day of 
February, 1859, by the Senate Committee on Indian Af- 
fairs, a clause was inserted to the eft'ect that in the judg- 
ment of the Senate, "the lands remaining unsold were 
worth nothing after deducting expenses of sale," which 
the Senate, being anxious to do full and exact justice to the 
Choctaws, struck out and inserted in lieu thereof the pro- 
vision which appears in the award, to wit, that they be 
"allowed twelve and a half cents per acre for the residue 
of said lands," meaning tlie lands unsold. 

6. In the above award, the Senate directed the Secre- 
tary of the Interior to state the account, as between the 
parties, upon the principle of settlement then announced, 
and to report the same to Congress, 

This was imposing upon the officer named, a mere min- 
isterial duty which it was competent for the Seiiate, in its 
character of arbitrator, to do, as is well settled in the Law 
of Arbitrament. 

7. In conformity to the principles laid down in the 
above award, the Hon. Secretary of the Interior did, as di- 
rected by the Senate, proceed to state the account, under 
the date of March 22, 1860, and therein set down in favor 
of the Choctaws the following credits: 

The proceeds of the sales of the lands sold 
up to January 1, 1859, viz, 5,912,664.63 
acres, amounted to ^7,556,578.05. 

The residue of said lands, viz, 4,176,374.04 

acres, at 12^ cents per acre, amounted to 522,046.75. 

18,078,614.80 



He next states the debit side, which consists of a great 
variety of items unnecessary to be here presented. It is 
sufficient to say that the aggregate was §5,097,367.50. 
He then strikes a balance, deducting the debits from the 
credits, and conchides in the following words and figures; 
'^Leaves a balance due the Chodaws 0/ $2,981,247.30." 

This account the Hon. Secretary reported to Congres, as 
directed by the award, on the 28th day of May, 1860, that 
is to say, during the 1st Session of the 36th Congress. 

8. The Choctaw Nation as such, and their venerable 
representative in this city who has been engaged for 
nearly one-third of a century in efforts to procure the al- 
lowance of this claim, at once acquiesced in the result, 
though by no means satisfied therewith, but did so in the 
full belief that the Uuited States would at an early day 
recognize the obligation imposed by the award, and pay 
the amount found due. Little did they aticipate, that at 
the end of the long period of fifteen years, they would 
find themselves under the necessity of making efforts to 
realize that object, just as strenuous as would have been 
required, had there been no award. Verily ! '" hope de- 
ferred maketh the heart sick." 

9. The action of the Senate, on this subject, not only re- 
ceived the acquiescence of the Choctaws but was substan- 
tially sanctioned by the two Houses of Congress at the 
Second Session of the 36th Congress, by the introduction 
into the Indian Appropriation Bill, of March 2d, 1861, of 
the following provisions : 

For payment to the Choctaw Nation or tribe of In- 
dians, on account of their claim under the eleventh and 
twelfth articles of the treaty with said nation or tribe, 
made the twenty-second of June, eighteou hundred and fifty- 
five, the sum of five hundred thousand dollars; two hun- 
dred and fifty thousand dollars of which sura shall be paid in 
money, and for the residue, the Secretary of the Treasury 
shall cause to be issued to the proper authorities of the 
nation or tribe, on their requisition, bonds of the United 



6 

States, authorized by law at the present session of Con- 
gress: Provided, That in the future adjustment of the 
claim of the Choctaws, under the treaty aforesaid, the said 
sum shall be charged against the said Indians. (Statutes 
at Large, Vol. 12, p. 238.) 

Here it will be observed that there is an express refer- 
ence to the claim of the Choctaws, under the 11th and 
12th Articles of the Treaty of the 22d of June, 1855, which 
could be nothing else but a claim for the fulfilment of the 
award made by the Senate in their favor ; and, also, that 
Congress therein m.ikes an appropriation for a considera- 
ble percentage of that award, to wit, $500,000 ; one-half 
in cash, the other half in bonds of the United States, and 
both payable at once. 

How could Congress more emphatically sanction the pro- 
ceedings of the Senate in the premises ? The appropria- 
tion being made at the close of Mr. Buchanan's Adminis- 
tration, the duty to make the payments above directed be- 
came incumbent upon Mr. Lincolu-and his administration, 
and the distinguished statesman who was his first Secre- 
tary of the Treasury and afterwards became Chief Justice 
of the United States, had no difficulty in recognizing the 
delegate of the Choctaw Nation, so'long a resident here, 
as being abundantly authorized to receive in their behalf 
the cash payment which he, the Secretary, made at an 
early day to that delegate, and took his receipt therefor 
in behalf of said nation, so that we have emphatically a 
sanction of this award, not only by the legislative, but by 
the Exeutive Department of our Government. 

10. Soon after the cash payment was made the country 
became deeply involved in the late deplorable civil war 
and further action by the Executive, under the provision 
was properly, if not necesarily postponed until its close. 
Soon after which application was made to the Treasury 
Department, by the delegate for the one quarter of a mil- 
lion in bonds, but obstacles w'ere thrown in his way which 



the undersigned will not enter into, he purposely abstains 
therefrom, but will add, that these people not being able 
with every endeavor to obtain the balance of the appropri- 
ation, the subject attracted the attention of Congress, and 
thereupon that body inserted in the Indian appropriation 
bill of the 3d of March, 1871, (2d Sess., 41st Congress,) the 
following provisions. " The Secretary of the Treasury is 
hereby authorized to issue to the Choctaw tribe of Indians, 
bonds of the United States, to the amount of two hundred 
and fifty thousand dollars, as directed by the act of March 
2d, 1861, entitled an act making appropriations for the 
current and contingent expenses of the Indian Department 
and for fulfiling treaty stipulations, with various tribes. 

Here it will be observed, that Congress speaks of the 
act referred to as giving a direction to issue to the Choc- 
taws, the amount of bonds, named for the purpose specified, 
that is to say " on account of tlieir claim," under and by 
reason of the award, and having the impression that the 
then Honorable Secretary of the Treasury entertained 
doubts as to his authority in this regard, they determined 
to clear the subject of all difficulty and inserted the above 
provision in the Indian bill last specified for that purpose, 
80 that at the expiration of ten years after the first sanc- 
tion given by Congress to this award, we have another 
equally significant. 

At the preceding session, to wit, on the 12th of July, 
1870, when the civil appropriation bill was under considera- 
tion in the Senate, the Hon. Wm. A. Buckingham, then a 
member of the Committee on Indian afiairs,and afterwards 
its chairman, having a just sense of the injustice done the 
Choctaws in this matter offered an amendment thereto 
nearly coincident in terms with the provision inserted in 
the Indian appropriation bill, of the 3d of March, 1371, 
already quoted, upon which he addressed the Senate as 
follows. '«/ believe that this is an obligation which this Gov- 



8 

ernment oives }ust as dearly, just as righteously as I owed any 
debt which I ever contracted^ 

Nothing could be more emphatic than this. No doubt 
he had given this entire subject a profound consideration, 
and considering his high inteligence, untiring industry, 
and spotless integrity, his opinions in this regard cannot 
fail to have great weight witli Congress, and particularly 
with the Senate. He was a man of few words, and of noble 
deeds not a few. With a benificence ever active and 
having for its object in a marked degree the poor and the 
defenceless, his sudden removal by death so deeply lamented 
by his honorable associates in the Senate, must be deemed 
an irreparable loss to humanity. 

The undersigned presents, in the above exposition, all 
the considerations which are in his judgment essential for 
the formation of a sound judgment by those who have the 
responsibility of acting on this entire matter. He maintains 
that the rights of the one party, and the obligations of the 
(»ther are conclutjively settled by the award of the Senate, 
and that the United States are bound in as high a degree 
to pay to the Choctaws the amount found due, to wit, 
$2,981,247.30, as they would have been had a stipulation 
to paythat amount been introduced into the treaty of June 
22d, 1855, and had articles 11 and 12 been omitted. 

The undersigned insists that the moment tliis award was 
enunciated, the result became a treaty obligation, and as- 
sumed precisely the character which the awartl of the ar- 
bitrators selected by the United States and Great Britain, 
to pass upon the dfiierencos of the two powers, had when the 
same was made and published at Geneva. It then became 
a treaty obligation, as between the United States and 
Great Britiaii, as in this case the award of the Senate is a 
treaty obligation in favor of the Choctaws, binding the 
United States. It is true that Great Britain had, in a 
physical sense, the power to spurn that obligation, but in 
such case the pertidy would have instantly invoked a dec- 



9 

laration of war by the United States, who are abundantly 
competent to assert their own rights. In this case, however, 
no such assertion for obvious reasons is possible, whatever 
the perfidy may be. 

Bat let us look a little more closely into this subject 
with a view to ascertain precisely how the matter stands: 
The Government of the United States, upon principles 
of the common law, enjoys a complete immunity from 
litigation, and cannot be arraigned in a court of justice 
by citizens, however aggravated the injuries may be, which 
the}' have received through the agency of the public au- 
thorities or otherwise. All they can do is to resort to 
supplication or, in other words, prefer a petition to Con- 
gress for a redress of grievances. It is doubtful whether 
the Indian race are in as good a situation as citizens, for 
they are not recognized as such, but certainly they are in 
no better. The United States thus enjoying this im- 
munity in a legal sense from responsibility for wrongs, 
however committed, particularly tn the case of these In- 
dian nations or tribes, concluded, in a spirit of amity and 
justice, to come down from this high position and to be- 
come a party like any private citizen to a friendly lawsuit 
with this Choctaw Nation in the form of an arbitrament 
as arranged by the treaty of 1855. 

Under these circumstances, the United States are to be 
regarded as private citizens, resorting to such a tribunal, 
with other citizens, for an adjustment of diiferences and 
in the case under consideration, the rights accruing in 
favor of the latter, the Choctaws, and the obligations in- 
curred by the former, the United States, are to be appre- 
ciated upon the principles of law and equity, which would 
govern in any ordinary case. 

The undersigned here emphatically takes the ground 
that in every such case the award made in conformity to 
the submission is final and conclusive on the parties. To 
go behind the same with a view to make further enquiries, 



10 

either as to law or facts is wholly inadmissihle. Arbi- 
trators are at liberty to make either law or equity or a 
combination of both the rule for an adjustment of the 
rights of the parties. There caji be no enquiry in regard 
to their appreciation of the evidence, unless the result to 
which they have come is so contrary thereto as to indicate 
.plainly partiality or corruption on their part. 

Let us attend to the inculcations of the pre-eminent Chief 
Justice Shaw of the Supreme Court of Massachusetts on 
.this important subject as follows : 

'^ In general, arbitrators have full power to decide upon 
questions of law and fact which directly or indirectly arise 
in considering and deciding the questions embraced in the 
submission. Their decision, both as to the one and tjie 
other within the scope of their authority, is conclusive 
upon the same principle that a iinal judgment of a court 
of last resort is conclusive, which is that the party against 
whom it is rendered can no longer be heard to question it. 
It is within the principle of re.s adjudicatn; it is the final 
judgment for that case between those parties. " 
Boston Water Power Co. cs. Grey, 6 Mete. Rep., p. 131. 

Let us also recur to the views of the Supreme Court of 
the United States, as expressed by Mr. Justice Grier: 

"Arbitrators are judges chosen by the parties to decide 
the matters submitted to them, finally and without appeal. 
As a mode of settling disputes, it should receive every 
encouragement from courts of equity. If the award is 
within the submission, and contains the honest decision of 
the arbitrators, after a full and fair hearing of the par- 
ties, a court of equity will not set aside for error either in 
law or fact. A contrary course would be a substitution of 
the judgment of the chancellor in place of the judges 
chosen by the parties, and would make the award the 
commencement, and not the end of litigation." Burchell 
vs. Marsh and Others, 17 How., U. S. Rep., 344, 349. 

An immense number of authorities could be cited to the 
same effect. 



11 

Why, then, are not the United Stales conclusively bound 
by the award, and how is it that the idea is entertained 
that this subject can be taken up ab ovo ? That the result, 
if adverse to the Choctaws, would be held to be binding on 
them, is certain. Have the United States peculiar pre- 
rogatives and privileges in this regard ? There is in the 
treaty of September 22, 1855, an undertaking by the 
United States to abide the award of the Senate and to 
carry the same into full eftect. It is true that we do not 
find this expressed in so many words in the 11th and 12th 
articles, but the undertaking arises out of the nature of the 
transaction, and is, in effect, written in those articles with 
a pencil of light. Would any citizen, having the slightest 
desire that the honor of our Government and the charac- 
ter of our people for rectitude should remain untarnished, 
be willing to have the treaty construed thus ? As for you, 
the Choctaws, the action of the Senate, if adverse to your 
claim, shall be binding, but if contrary to our view of 
the merits, we are to have a large liberty, that action shall 
be binding or not binding; we will pay or not pay in the 
exercise of our sovereign will and pleasure as we may see 
fit. What would this be but the assumption that these In- 
dian nations have no rights, not even under treaties which 
this great republic is bound to respect? Any such treat- 
ment of the subject would provoke the indignation of good' 
men throughout the civilized world, and attach to the 
American name and character indelible disgrace. 

The perverted notions which have prevailed, and may 
still prevail, to some extent, in regard to the conclusive- 
ness of awards, and particularly of that in favor of the 
Choctaws, received not long since a remarkable illustration 
in the proceedings of a subordinate officer of the Treasury 
Department. He, in the first place, with astonishing as- 
surance, assumed the character of a high judicial function- 
ary, whether of law or equity, or neither, it is difficult to 
determine, and in the next arrogated to himself tlie power 



12 

of overhaulinfic the proceedings of the Senate in this matter 
of the Choctaw award, and to bring the same to the test 
of his superior acnteness, sagacity, and wisdom. What if 
the seats of the Senate Chamber were largely occupied by 
lawyers of great eminence, and what if that body was en- 
gaged for nearly three years in an anxious consideration of 
the subject, and had deliberately settled the principles upon 
which their award should be based, and what if the Hon. 
Secretary of the Interior took another year to state the 
account for the purpose of consummating that award, and 
what if Chief Justice Shaw was all the while ringing in 
the ears of the illustrious Banfield, res adjudicata; noth- 
ing can arrest his career ; he plunges headlong into the 
midst of this vastly complicated subject, and concludes by 
blowing up the award of the Senate sky high. All this 
his High Mightiness deemed it proper to do without giving 
any notice to the Choctaw delegate, or without atibrding 
him any opportunity to make explanations. He insists 
that the Senate was entirely wrong in regard to the con- 
clusions which should be deduced from the evidence before 
it, consisting wholly of public documents, and that for this 
reason their award shuuld be deemed a nullity. It is true 
that an arbitrator may enunciate a result so obviously 
incompatible with, or unauthorised by evidence as to jus- 
tify the conclusion that he had treated the subject unfai'-ly, 
or in other words that the award was the result of par- 
tiality or corruption. In such a case it would, and ought 
to b'', set aside. But Banfield does not carry his lugubra- 
tions to that extent. It is not a case of depravity on the 
part of the Senate, but of incapacity, and this he thinks he 
has shown conclusively, by the fact that the Senate did 
not treat the receipt given by the Choctaws in 1852 for 
$872,000, for land scrip to that amount in value, as being 
a full satisfaction of their whole claim, when in fact it 
covered only a small part thereof. The undersigned invites 
particular attention to the following item entered in the 



13 

debit side of the account, as made out by the Hon. Secre- 
tary of the Interior, to wit.: " Scrip allowed in lieu of res- 
ervations, viz: 1,399,920 acres, at |1.25 per acre, $1,749,- 
900, which the undersigned avers included the scrip 
in payment, of which the Choctaws received the sum of 
$872,000, giving the receipt already named. Nothing can 
more strikino-lv illustrate the disino-enuousness exhibited 
by this public functionary when he treats this transaction 
as being an effectual bar to any further claim by the Choc- 
taws to the residue of the trust fund. But this explanation 
is wholly unnecessary, for the transaction here considered 
took place three years at least before the treaty of June 
22, 1855 was made, and, of course, was comprised in the 
reference to the Senate, and is covered by their award. 
Nothing could be more commendable than for honorable 
members of both the Senate and House to feel a strong 
repugnance to a further increase of the public debt, now a 
great burthen on the industry of the country, and this may 
well regulate their course in reference to the future. It 
cannot, however, be expected that the}-, as just and rea- 
sonable men, will permit this feeling to give shape and 
direction to their treatment of the obligations of the past. 
The undersigned insists, that the moment the award of 
the Senale was rendered this Choctaw claim became a 
debt, with all the binding force of any bond issued by the 
■ Government and now held in Europe or elsewhere, and 
that for Congress to adopt the amendment to the Indian 
appropriation bill proposed in the Senate will not increase 
our national debt one penny. The Choctaws have obtained 
a judgment against the United States, in the manner and 
to the amounts stated, and all they ask is the execution of 
that judgment. This can only be accomplished by an 
appropriation, and as it is a treaty debt, it is pre-eminently 
fit to introduce the same into the Indian bill. 

The undersigned regards it as peculiarly fortunate that 
the Senate should have the opportunity to take the initia- 



14 

tive on this subject. It may be worthy of the considera- 
tion of its honorable members, whether the dignity and 
high conservative character of that body will not be ap- 
propriately illustrated and sustained by giving full ettect 
to its own judgment. 

! That the late Hon. Chairman of the Senate Commit- 
tee on Indian Attairs could have been spared to co-operate 
in realizing an object, which the undersigned feels per- 
fectly assured lay very near his heart. 

Washington, Feb. 13, 1875. 

TRUMAN SMITH, 

Solicitor pro tern, for the Choctaws. 



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